United States District Court, N.D. California
ORDER DENYING LEAVE TO FILE FIRST AMENDED COMPLAINT,
DENYING MOTION TO LIFT RESTRICTION ON DISCOVERY PERIOD, AND
VACATING HEARING Re: Dkt. No. 37
PHYLLIS J. HAMILTON United States District Judge
the court is pro se plaintiff’s Dongxiao Yue’s
motion for leave to file a first amended complaint and to
lift the time restriction on the discovery period. Dkt. 37.
The matter is fully briefed and suitable for decision without
oral argument. Accordingly, the hearing set for July 20, 2016
is VACATED. Having read the parties’ papers and
carefully considered their arguments and the relevant legal
authority, and good cause appearing, the court hereby rules
a copyright case involving computer software. Beginning in
1994, Dr. Yue developed a software program called
“PowerRPC, ” which allows computers to remotely
access other computers. Compl. ¶ 11 (Dkt. 1). In 1996,
Yue founded an LLC, Netbula, to market PowerRPC. Compl.
¶ 12. Yue is the founder and sole owner of Netbula LLC.
In 2005 and 2006, Netbula registered two copyrights in
PowerRPC. Compl. ¶ 4. In 2007, Yue registered a
copyright in the “pre-1996” version of PowerRPC,
and Netbula assigned its copyrights in PowerRPC to Yue.
Compl. ¶ 4.
MSC Software Corporation (“MSC”) developed and
sells the software programs PATRAN and Supermodel. Compl.
¶¶ 24-25. Yue alleges that these programs
incorporate and use copyrighted elements of the PowerRPC
software. Compl. ¶¶ 25-30. Based on that
incorporation, plaintiff asserts five copyright claims
against defendant. Compl. ¶¶ 38-68. Plaintiff also
asserts a single claim of trademark infringement against
defendant. Compl. ¶¶ 69-77.
February 26, 2016, MSC’s motion to dismiss Yue’s
trademark claim came on for hearing. The court denied the
motion. Dkt. 24. At a subsequent case management conference,
the court set a pretrial schedule and limited the discovery
period to the past five years. Dkt. 30.
brings a motion for leave to file a first amended complaint
pursuant to Federal Rule of Civil Procedure 15(a)(2), and to
lift the limitation on the discovery period. Mot. at 1 (Dkt.
37). Yue’s proposed amended complaint seeks to assert
two new claims (the “fraud claims”), alleging
intentional fraud and unfair competition in violation of
California law. See Proposed First Amended Complaint
(“PFAC”) ¶¶ 84-97 (Dkt. 37-1).
new fraud claims arise out of a 2001 contract between MSC and
Netbula (the “Agreement”). In June 2001, MSC
signed a software license agreement with Netbula, which
included five developer licenses and the right to distribute
1000 copies of software containing the PowerRPC
“runtime files.” PFAC ¶ 25. In August 2005,
MSC terminated the Agreement. PFAC ¶ 27. Around that
time, “Plaintiff requested MSC Software to provide an
accurate count of the licenses” actually used under the
Agreement; MSC gave this number as 159. PFAC ¶ 28. Yue
alleges that when MSC terminated the Agreement, it
“represented to Plaintiff that it had stopped using
PowerRPC.” PFAC ¶ 85. Contrary to MSC’s
representation, Yue alleges that “in fact” PATRAN
and SuperModel were developed with and used PowerRPC and were
infringing on “a massive scale since 2004.” PFAC
¶ 86. On the basis of these new fraud claims, Yue seeks
to extend the discovery period “to June 2001 or
earlier.” Mot. at 1.
opposes leave to amend the complaint as futile, because Yue
lacks standing to assert the fraud claims. Opp’n at 1
(Dkt. 38). MSC contends that because the fraud and unfair
competition claims arise from an agreement between MSC and
Netbula, these causes of action belong to Netbula, and not
Yue personally. Opp’n at 2. MSC argues that Yue
attempts to blur the legal distinction between Yue and his
company in order to circumvent the rule against pro se
representation of corporate entities, noting Yue’s
previous attempts, in other cases in this district, “to
litigate, pro se, claims that properly belong to”
Netbula. Opp’n at 1.
Federal Rule of Civil Procedure 15(a)(2)
Federal Rule of Civil Procedure 15, a party may amend its
pleading as matter of course within 21 days. Fed.R.Civ.P.
15(a)(1). Thereafter, amendment requires either the opposing
party’s written consent or the court’s leave.
Fed.R.Civ.P. 15(a)(2). However, courts should “freely
give leave when justice so requires.” Id. In
deciding whether to grant a motion for leave to amend, the
court considers bad faith, undue delay, prejudice to the
opposing party, futility of amendment, and whether the moving
party has previously amended the pleading. In re W.
States Wholesale Natural Gas Antitrust Litig., 715 F.3d
716, 738 (9th Cir. 2013). Of these factors, the consideration
of prejudice to the opposing party carries the greatest
weight. Eminence Capital, LLC ...